On Monday, the US Department of Justice approved the sale of
Nortel's
patent portfolio to a consortium led by Apple and Microsoft. At the same
time, the DOJ and the European Commission allowed Google to buy
Motorola Mobility, thus giving the search company a sizable patent
portfolio.

"We appreciate that competition authorities in the US and Europe continue to
take software patents seriously as a risk to competition," says Karsten
Gerloff, President of the Free Software Foundation Europe. "However, we
believe that the commitments made by Google, Microsoft and Apple regarding
their patent licensing policies are not sufficient to allow everyone to compete
on equal terms."

The terms of those commitments do nothing to ensure that the software patents
in the portfolios in question can be implemented in Free Software.

While Microsoft has said that it will not seek injunctions against
companies using its standard-essential patents, this policy merely restates
the commitments Microsoft has already made to standards organisations.
Microsoft will only license its patents on so-called "RAND" terms (short
for "reasonable and non-discriminatory"). These typically require the
company that implements the patents to pay a licensing fee per unit.

Despite their name, such conditions are largely incompatible with Free
Software based on Open
Standards, standards which can be implemented by anyone in any business or
software model. This means that Microsoft remains free to use its patents to
block or harm some of its most important Free Software competitors, such as
the GNU/Linux operating system and the LibreOffice productivity suite.

"By greenlighting both the Google and Nortel transactions, the DOJ has merely
created a balance of terror where patents are concerned," says Gerloff. "Small
companies and individual software developers don't have the deep pockets
required to play the patent litigation game. They will suffer as a result of
this deal, along with the shareholders of Google, Microsoft and Apple.
When elephants dance, the smaller wildlife gets crushed."

FSFE submitted a comprehensive
statement of
concern to the US Department of Justice in September 2011.